5

Recently, a GOP consultant became famous for saying that if the Senate held this vote in secret, at 30 Republican senators would vote to convict Trump on impeachment charges.

I am wondering if the Senate is legally allowed to hold a vote on something without revealing each senator's vote. The only thing we'd see is the vote tally.

Article 1, Section 3 of the Constitution says,

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

It does not say that the names of the senators have to be revealed. I wonder if any other parts of the Constitution shed light on this issue?

There might be some precedent. According to a 1999 Harvard Crimson article that argued in favor of the secret conviction vote, the House selected the president through a secret ballot in 1824.

This kind of voting could drastically change the outcome of an impeachment process.

7

Could the Senate legally hold an impeachment conviction vote in secret?

Under current rules, no.

RULES OF PROCEDURE AND PRACTICE IN THE SENATE WHEN SITTING ON IMPEACHMENT TRIALS

XIV. The Secretary of the Senate shall record the proceedings in cases of impeachment as in the case of legislative proceedings, and the same shall be reported in the same manner as the legislative proceedings of the Senate.

XX. At all times while the Senate is sitting upon the trial of an impeachment the doors of the Senate shall be kept open, unless the Senate shall direct the doors to be closed while deliberating upon its decisions. A motion to close the doors may be acted upon without objection, or, if objection is heard, the motion shall be voted on without debate by the yeas and nays, which shall be entered on the record.

XXIII. An article of impeachment shall not be divisible for the purpose of voting thereon at any time during the trial. Once voting has commenced on an article of impeachment, voting shall be continued until voting has been completed on all articles of impeachment unless the Senate adjourns for a period not to exceed one day or adjourns sine die. On the final question whether the impeachment is sustained, the yeas and nays shall be taken on each article of impeachment separately; and if the impeachment shall not, upon any of the articles presented, be sustained by the votes of two-thirds of the Members present, a judgment of acquittal shall be entered; but if the person impeached shall be convicted upon any such article by the votes of two-thirds of the Members present, the Senate shall proceed to the consideration of such other matters as may be determined to be appropriate prior to pronouncing judgment. Upon pronouncing judgement, a certified copy of such judgment shall be deposited in the office of the Secretary of State. A motion to reconsider the vote by which any article of impeachment is sustained or rejected shall not be in order.

Rule XIV requires the record be the same as other other proceedings.
Rule XX requires the proceeding be public.
Rule XXIII requires a roll call vote for each article.

For example, this, A resolution impeaching William Jefferson Clinton, President of the United States, for high crimes and misdemeanors., is a list of votes for the Senate.

I wonder if any other parts of the Constitution shed light on this issue?

Aticle I, Section 5:

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

"[P]ublish", in this sense, means make public.

  • So if more than four fifths don't want the "Yeas and Nays" entered into a journal, the votes are not revealed? – tphilli Sep 28 at 18:20
  • @tphilli - No. the one fifth of those Present refers to requiring the taking a roll call vote. By rule every vote during an impeachment trial is a roll call vote. – Rick Smith Sep 28 at 18:48
  • 1
    Not sure why anyone would down-vote this answer. – D Krueger Sep 28 at 20:09
  • Can't these rules be changed at any time with 51 votes? – dandavis Sep 30 at 7:19
  • @dandavis - The rules could be changed, for this anticipated and any future trial of impeachment, or, under rule VII, for a particular trial. Whether 51 or 60 votes is required, I don't know. – Rick Smith Sep 30 at 12:56

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .